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22 May 2020

862: New highway consent and more COVID-19 progress

Today’s entry reports on the latest Development Consent Order decision and COVID-19 related developments.

Although the decision on the Manston Airport application was delayed for a second time from 18 May to 10 July, the M42 Junction 6 project was decided on time on 21 May.

Here are the details:

  • Project: various improvements at and around Junction 6 of the M42 near Birmingham;
  • Promoter: Highways England;
  • Application made: 2 January 2019 – unsurprisingly the first 2019 application to be approved;
  • Two inspector, David Cullingford (his first) and Richard Jones (his second, although the first was the ill-fated Rail Central project);
  • 35 relevant representations, low;
  • 26 written representations, low;
  • 137 questions in the first round, low;
  • Two compulsory acquisition hearings, seven issue specific hearings and two open floor hearings – above average;
  • Two Local Impact Reports, from Solihull and Warwickshire;
  • Examination exactly six months, recommendation exactly three months, decision exactly three months, on the first anniversary of the preliminary meeting;
  • 505 days from application to decision, 16 1/2 months, almost exactly average; and
  • 652 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations), average.

There are some points to note as usual from the decision letter.

The Secretary of State asked the applicant to undertake further traffic modelling during the decision stage, which is quite unusual.

The project had a number of residual impacts, but these were outweighed by its benefits, a reminder to all that impacts do not need to be eliminated, they merely need to add up to less than the sum of the benefits.

One of those was that the development was largely in the Green Belt, but very special circumstances were held to obtain due to the material considerations weighing in favour of the project.

A requirement has been introduced to relocate an attenuation tank.

The net zero target gets a mention and the project is considered not to threaten it.

On Crown land, the relevant Crown body informed the Secretary of State the day before the decision that there wasn’t any. There was an issue about land becoming Crown land through acquisition for HS2, but as that hadn’t happened yet it wasn’t an issue for this project.

A few agreements with third parties were not quite concluded at the time of the decision but compulsory acquisition powers were considered to be justified anyway.

The Secretary of State removed a requirement introduced by the Examining Authority about priority at a junction.

Unusually, the Secretary of State requires the applicant to update the Register of Environmental Actions and Commitments on a lighting issue (para 53). What happens if it doesn’t? Until now, external documents were not generally susceptible to change in a decision.

The standard tree felling article does not apply to ancient woodland.

The DCO overrides any inconsistent provisions in local legislation (standard), but this includes the High Speed Rail (London – West Midlands) Act 2017, which probably doesn’t think of itself as ‘local’.

The Examiners’ Report noted at paragraph 5.15.9 that Cadent were seeking more protection than the Planning Act 2008 affords, namely protection from ‘serious detriment’ rather than any detriment.

That’s the 82nd DCO to be granted. The next one that is due is for the first solar farm, at Cleve Hill in Kent, on 28 May.

COVID-19 update

Not much in the last week, but here are a few developments.

The Planning Inspectorate has issued a scoping opinion that was applied for after lockdown started, within the 42 days allocated to it. Not only is it impressive that it was achieved within the 42 day time limit despite lockdown, but it is worth setting out section 3.4 in full, which tackles the issue of difficulty of obtaining reliable survey data:

‘3.4.1 The Inspectorate understands government enforced measures in response to COVID-19 may have consequences for an Applicant’s ability to obtain relevant environmental information for the purposes of their ES. The Inspectorate understands that conducting specific surveys and obtaining representative data may be difficult in the current circumstance.

3.4.2 The Inspectorate has a duty to ensure that the environmental assessments necessary to inform a robust DCO application are supported by relevant and up to date information. Working closely with consultation bodies, the Inspectorate will seek to adopt a flexible approach, balancing the requirement for suitable rigour and scientific certainty in assessments with pragmatism in order to support the preparation and determination of applications in a timely fashion.

3.4.3 Applicants should make effort to agree their approach to the collection and presentation of information with relevant consultation bodies. In turn the Inspectorate expects that consultation bodies will work with Applicants to find suitable approaches and points of reference to allow preparation of applications at this time. The Inspectorate is required to take into account the advice it receives from the consultation bodies and will continue to do so in this regard.’

Virtual hearings are planned for June. A letter has been issued on the M25 Junction 10 project that sets out how its compulsory acquisition hearing, spread over there days, will work. The last piece of the jigsaw that will allow projects to continue from inception to consent is the preliminary meeting. As it did when proposing virtual hearings for the Derby Junctions project, the Inspectorate has issued a questionnaire for the Aquind interconnector project about issues surrounding an online preliminary meeting, for which responses are invited by 1 June. Added into the mix, host authority for most of the route Portsmouth City Council has said that the project should be delayed until after the pandemic is over.

Finally, on a lighter note Sir Antony Gormley has got involved in the A1 Birtley to Coal House project, because of its potential impact on the Angel of the North – see his letter here.

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